Ivory Homes says Utah Supreme Court ‘misunderstood’ arguments over Cottonwood Mall project, asks for a rehearing

(Rendering by Woodbury Corp.) An aerial rendering of Holladay Quarter, a proposed development on the former site of the Cottonwood Mall in Holladay.

Utah’s largest homebuilder claims the state Supreme Court misunderstood legal arguments over a huge development project in Holladay, and it has asked the justices to reconsider their Nov. 29 ruling in the case.

In that closely watched and unanimous opinion, the high court ruled against Ivory Homes and Holladay and in favor of residents who argued that a site master plan adopted for the old Cottonwood Mall property was “generally applicable” beyond the Ivory Homes project and could be challenged at the polls.

That ruling, which came three weeks after Holladay voters had overwhelmingly rejected the site plan on Election Day, essentially affirmed that the legal basis for that city ballot was valid. It also dealt a severe and possibly fatal setback to Ivory Homes' $560 million, 57-acre proposed project at the mall site, known as Holladay Quarter, which the developer has pushed for almost two years.

With 16,671 residents casting ballots, nearly 58 percent of city voters rejected the site master plan Nov. 6. And some considered the election result and the Supreme Court’s opinion in the case, known as Baker v. Carlson, as the final words in the matter.

But, in a Dec. 12 court filing that one attorney described as “unusual,” Ivory Homes is now asking the high court for a rehearing, saying the Supreme Court was mistaken in considering the site master plan separately from a development contract the city signed with Ivory Homes.

The justices had not signaled as of Friday whether they intended to reconsider their ruling, according to the court’s docket. Attorneys in the case also said they’d receive no notice that any review was pending.

Reached Thursday, Brett Stohlton, an organizer of the residents’ group, Unite for Holladay, declined to comment.

In their filing for a rehearing, Ivory Homes’ attorneys wrote that under Holladay’s city code, “site development master plans and agreements for the development of land are definitionally linked to each other and cannot operate in isolation from one another.”

"A site development master plan is meaningless and unenforceable without an agreement for the development of land," Ivory's lawyers wrote.

At one point in its deliberations on the case, the high court ordered lawyers on both sides to submit legal briefs that discussed the site master plan by itself — though Ivory says it insisted several times that “the Court’s hypothetical could not possibly arise” under Holladay’s ordinance.

To comply with the court’s order, Ivory “did its best to respond,” its lawyers said, though it now appears the justices misunderstood that response as a concession that the site master plan they negotiated could apply to another developer.

That, Ivory’s attorneys said, could not happen. The site plan “can never apply to another developer unless there is a contract with the city that permits that specific developer to take advantage of its terms,” they wrote. Because other developers could not step in on the project without completely renegotiating the deal, the lawyers wrote, the site master plan is not “generally applicable,” as the court found.

Ivory Homes says this “misapprehension” by the court justifies a rehearing.

Though technical, the question resonates well beyond Holladay, as Utah cities commonly use site master plans and developer agreements in tandem to guide major development projects. The Holladay case has also been closely followed over its implications for Utah’s referendum process.

Ivory Homes had secured city approval in May for a massive mixed-use development at the vacant Cottonwood Mall location near 4800 S. Highland Drive. Holladay Quarter was to include several office towers, retail outlets and restaurants combined with a 775-unit high-rise apartment complex and 210 single-family homes, luxury condominiums, brownstones and manor houses.

Unite for Holladay opposed the project, saying it was too dense and too focused on residential units for Holladay’s needs, threatening to snarl traffic and diminish the city’s quality of life. The grass-roots group gathered petition signatures to put the issue on the city’s Nov. 6 ballot.

Ivory Homes and city officials battled back in court, arguing the city’s actions on the project were purely “administrative” and applied only to the Cottonwood Mall project, so they were not legally eligible for Utah’s referendum process.

But 3rd District Judge Richard McKelvie ruled the city’s approval of site development master plan was instead a “legislative” act because it applied more generally, meaning it could to go referendum. Ivory and the city appealed, and the case reached the Utah Supreme Court in early September.